In most cases, when we talk about the issues arising from a couple’s separation, we discuss civil claims such as child custody, child support, alimony and property distribution. But there are some actions a spouse might take following a separation that can lead to criminal liability. In this episode, host Jaime Davis discusses two of those issues- domestic criminal trespass and revenge porn- with attorney Maria Hawkins of Wyrick Robbins Yates & Ponton LLP.
Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.
Jaime Davis: Welcome to Episode 4 of Season 2 of ‘A Year and a Day’. I’m your host, Jaime Davis. In Episode 3, I discussed inheritance rights and how your marital status might affect those rights with attorney Brooke Dalrymple. In this episode, I will be discussing some of the criminal law issues that can arise in the context of your family law case with attorney Maria Hawkins. Maria is an attorney with Wyrick Robbins Yates & Ponton LLP, where she represents clients in all matters related to family law. Welcome, Maria.
Maria Hawkins: Thanks for having me.
Jaime Davis: So normally when we talk about the issues arising from a couple’s separation, we discuss civil claims such as child custody, child support, alimony and property distribution. But there are also some criminal issues that can arise in the context of a family law case. Today I thought it might be helpful for our listeners if we discussed a couple of the criminal issues that can arise. The first is domestic criminal trespass. Maria, what exactly is that? What is domestic criminal trespass?
Maria Hawkins: So first, it’s important to kind of understand when you separate and I am sure you’ve covered this in another program. When you separate and one party leaves the marital home for the purposes of separation, you don’t really get to come back unless the spouse invites you back. And if you do come back with that spouse can do is the spouse can domestically criminally trespass you. What that means is they have to make it clear to you as the spouse who has left, “hey, you can’t come back here. I don’t want you to come back.”. They’re free to change the locks or do whatever it is to keep you out of the home unless they have a court order that says they’re not allowed to do that. If you come back after they’ve told you not to be there. You can be charged with domestic criminal trespass, which is a misdemeanor and is a criminal charge that you could face. Depending on what your record is, you can be charged with up to 120 days in jail and also fines that are set by the judge. Now there’s an extra layered on if there is some type of safe haven, for example, a domestic violence shelter and you’re criminally trespass from there as well. That can be a class G felony, which is much more serious and that’s specific to victims of domestic violence. So that really wouldn’t apply unless the spouse who is staying is a victim of domestic violence.
Jaime Davis: So going back to the marital home after separation, if you don’t have permission, can be a big deal, it sounds like.
Maria Hawkins: Absolutely. Especially when, like I said, there’s been a domestic violence situation and you definitely don’t want to be facing criminal charges, especially if you’re looking at a custody case or some type of case where your moral character is important.
Jaime Davis: So what do you do? What if you’re the spouse who has moved out, but let’s say you left some of your personal belongings behind and you need them for work or whatever, what is the best way to go about getting those items?
Maria Hawkins: Assuming there’s not a protection order in place? And I hate to keep going back to domestic violence, but a lot of the times when people can’t agree on a time to come back and look at the home, that is one of the issues that happens in these cases. I can say other than getting a lawyer and trying to negotiate things, you can call your spouse, text your spouse. It’s best to have everything in writing, especially if you’re coming back to the home after they’ve forbidden you to be there. What’s key to this statute is that a person enters the home after being forbidden to do so, remains in the home. So if your spouse hasn’t necessarily forbidden you to be there, there’s a potential that you wouldn’t be charged with domestic criminal trespass. However, if they have allowed you to come back to the home, it’s always best to get that in writing so that if they try and later say you did not have permission to be there, you have something backing you up.
Jaime Davis: So what happens if you do have permission? Your spouse said, “OK, you may come back”, and while you’re there, they change their mind. What should you do?
Maria Hawkins: Immediately leave and get legal counsel. You can also call the sheriff department and ask for them to escort you back to the home to collect some belongings. But the honest answer is any time you’re leaving the home for the purposes of separation, you should definitely take all the important items, sentimental items that you would be upset if they got lost, damaged, stolen or sold at the end of the day. You can have an attorney or yourself always argue to a court that those things should be taken care of or given back. But if they’re already destroyed, if they’re already sold, it’s really hard to get those things back.
Jaime Davis: Right. Absolutely. So is there anyone who can’t be charged with domestic criminal trespass?
Maria Hawkins: It’s a really good question. Being married is pretty key to this statute. However, it’s important to note that the statute does say “or if you are living as if married”, so while in North Carolina, we don’t really recognize common law marriages, what a lot of people refer to as people living together as husband and wife, but they haven’t officially tied the knot. Those can be charged with domestic criminal trespass as well. So, a live in boyfriend or girlfriend for a serious period of time, we are sharing bills, are our statutes in our case law really look at living as though you were married, sharing bills, sharing responsibilities and kind of holding yourselves out to be a long term couple.
Jaime Davis: So what if it’s just a roommate?
Maria Hawkins: Roommates can not be charged with domestic criminal trespass. But I would say if your quote roommate is a romantic partner, I would just be careful because it’s better to be safe than sorry. And once you’re charged, you’re charged. You can always try and get things expunged later down the road. But at the end of the day, a charge is going to show on your record even if it does say “not guilty”, it’s probably not something that you want.
Jaime Davis: And you’re going to have to pay to deal with it, right? You’re probably going to need to hire a criminal lawyer in addition to your domestic lawyer to help you get through that issue. And so if you can get out in front of it and just use best practices to not put yourself in that situation, that’s probably the way to go.
Maria Hawkins: Absolutely. And again, that’s why I say once you move out, I always advise my clients, make sure you’re taking everything that’s important, your high school Letterman jack. If you’re married and and there’s a piece of jewelry or something that is very important to you, always take those things out. If you’re in a domestic violence situation where your back is kind of against the wall and you’re in abusive relationship, you can always seek a domestic violence protective order, which I know is in another one of your podcasts and ask for possession of your marital home back.
Jaime Davis: And I also think people tend to get themselves in trouble with this issue during custodial exchanges. I think sometimes they don’t realize that following the separation, there are new boundaries in place and that they really are not supposed to be going inside the home to pick up the children for their custodial exchanges unless their spouse has told them they can write. And so another best practice, I believe, is that you conduct your custodial exchanges on the front porch at the curb, not necessarily going back in to that house.
Maria Hawkins: That’s absolutely correct. And again, I think boundaries are key to this statute and boundaries are really key to separation. In general, it’s really good to make sure you guys understand, even if you’re just separating because things didn’t work out and you’re really getting along for all intensive purposes. That’s honestly where I see the most boundary issues because people think, oh, we’re still friends, I’ll come in, I’ll sit down, I’ll have breakfast with my kids and things like that. And while it may work for you and it may work for your soon to be ex spouse, somebody is going to get upset down the road. Somebody is not going to want you there. And so I think best practices are good. Exchange on the front porch. If the kids are old enough to walk to your car, stay in your car unless there’s a reason for you to leave. And it’s not negative. It’s not saying that you don’t want anything to do with your ex-spouse, especially with custodial issues. You do have children together and you need to work to get along. But I think sometimes making sure that those boundaries are in place are good for you, your spouse and your kids. If you’re going in and out of the home, kind of still owning the place like it’s yourself, it can also be confusing for the children, especially if they’re younger and still trying to wrap their heads around the separation issue all together.
Jaime Davis: Right. I absolutely agree. So I think if you are the spouse who is remaining in the home and you want to ensure that the person who has moved out is respecting your boundaries, is not coming in for these custodial exchanges, a best practice is to probably let that person know, in a letter, in an email, in a text, something in writing that tells them specifically that they’re not allowed to come in. Would you agree?
Maria Hawkins: Definitely. I definitely agree with that. And I have this problem a lot with my spouses who stay in the home where their name is not on the deed, or maybe it’s not even a marital property at all, but it is the marital home, and a lot of people are confused by that and may not necessarily understand that. If it’s a short term marriage where the marital interest in the home really isn’t very much, if your name’s not on the deed, that doesn’t mean you have to leave. And that’s a big, big point of contention for a lot of people. They say, “well, I can’t make him leave his house”, or, “I can’t make her leave. It’s her house. She had it for 20 years before we got married.”. It’s not exactly how our laws work. And so I think, you know, writing down, shooting it in an email, text as a last resor, but I always think e-mail is better. I think e-mail is even better than a hardcopy letter. Why? Because we have dates. We know it was sent, especially if you have an e-mail where you can track whether it’s been opened. Those are all really great things. The theory being I tell my clients all the time, if there’s no response to the e-mail, there’s no argument with the e-mail. “Hey, you moved out today. We agreed I’m staying in the home. We’ll work things out. I’ll hire a lawyer, you’ll hire a lawyer”, or whatever it is you guys decide to do. Maybe collaborative divorce is what you guys want to do. And and you said that all of that was OK. Well, if husband or wife doesn’t respond to that e-mail saying, “absolutely not. That wasn’t our agreement. We agreed that you would stay there for a couple of weeks and then I would come back”, or “I didn’t know we were separating. I thought I was just going to cool off for the night.”. That is the biggest thing I see come back with people arguing over possession of a marital home during a separation. So, the flip side to that is if you see a spouse where she’s absolutely wrong or he’s absolutely wrong and what the e-mail is, respond to it and acknowledge that, because if you don’t, I think there’s a pretty clear argument that you don’t disagree with it because you didn’t say anything.
Jaime Davis: Right. And there are so many little wrinkles in these situations. I mean, if it is a case where truly one spouse has just packed an overnight bag and they really are leaving for one night to cool off, you know, that’s probably not a case where you can send this communication that they’re not allowed to come back, right? But if you are that person leaving I do think it’s important that you send the person staying in the house a communication that says, “hey, I’m gonna be back tomorrow. I’m only leaving for the night so that we can both cool off and get it back together. But I will be back tomorrow.”. You don’t want to give the spouse in the house the opportunity to to kick you out if that’s not what you intended.
Maria Hawkins: Absolutely. I’ve been on both sides of that. And I will tell you, being on the side of a spouse who left for the night to cool off is a much harder hill to climb than the spouse who stayed in the home. You definitely don’t want to get into a situation where you’re risking a charge like a domestic criminal trespass.
Jaime Davis: Right. Although I do think it’s really important in those heated situations that if leaving and cooling off is the answer that keeps both of you from domestic violence situations, that’s absolutely the way to go.
Maria Hawkins: Absolutely. And domestic violence is not something to be toyed with. And it is something that at least in Wake County, our judges definitely take very seriously and they definitely don’t want to take any chances and will almost always air on the side of caution.
Jaime Davis: Maria, in addition to domestic criminal trespass, another criminal issue that can arise in the context of a family law case is revenge porn. What is revenge porn?
Maria Hawkins: Revenge porn is new. It’s fairly new when it comes to our laws. It was enacted in 2015, which basically means a new law was created by our government. Basically, revenge porn is kind of exactly what it sounds like, when you decide to take private pictures of an individual. It doesn’t have to be porn in the conventional sense of what we think, which is actually two people engaging in sexual activity. It can be nudity, pictures, suggestive pictures in any way. There are carve outs to the statute for revenge porn where images that were voluntarily exposures in public. So basically, if you’re on a topless beach or your in maybe some scandalous type clothing out and about. Revenge porn is generally focused on those pictures that you may take with your spouse or your loved one, nd you don’t have to be married, to fall under the statute that are private in nature and disseminating that to a third party. And a lot of times this happens when people aren’t necessarily getting their way in a separation and they think they can use this as an intimidation factor. It may work with somebody who’s not represented at the time, but it’s definitely a dangerous route to take.
Jaime Davis: So let me make sure that I’m clear. So this is a situation where, let’s say you have taken a picture of yourself, maybe you’re topless and your spouse or partner, following a breakup or a separation, decides they’re going to put that picture on social media or they’re going to otherwise put it on the Internet. Is that the crime?
Maria Hawkins: Yes. Disseminating the the images are disclosures made by any person to a third party social media, sending it to another person. You know, “hey, I think your new boyfriend might like to see this”, or something like that. Those are all would fall under the statute.
Jaime Davis: And you mentioned some exceptions. You mentioned if it was a picture that was taken while you were in public, that would not fall under the statute. Are there any other exceptions?
Maria Hawkins: Any public or commercial settings would be an exception to the statute. Disclosures that are made in the public interest. So things about legal proceedings – I off the top of my head, can I think of a legal proceeding where we would be involving this. Maybe some type of lawsuit against against your ex about these documentations, medical treatment, scientific or educational activities, providers of an interactive computer service? Basically, you can’t sue Facebook for putting these pictures up because Facebook is just kind of the host. And the law was actually changed in June of 2017 because there were some people using the Facebook platform as an exception so they actually have tightened this law, which I think goes to show that our legislature is pretty serious about the punishments for this.
Jaime Davis: So how is that an exception?
Maria Hawkins: How is what an exception?
Jaime Davis: You said that there was like a Facebook exception and so they tightened the law to take care of you.
Maria Hawkins: Basically, you can’t sue Facebook. So Facebook is kind of an independent third party, which a lot of people are kind of upset about. We’ve heard a lot about this with YouTube.
Jaime Davis: Yeah.
Jaime Davis: So what do you do if you think you have been a victim of revenge porn?
Maria Hawkins: The most important thing to do is to document it. Make sure that you’re showing proof that it actually happened. Go out and seek legal counsel. You know, it sounds like what you would think a lawyer would say. That’s absolutely the most important thing, because your reputation in this world is everything. You can also seek help with your local district attorney about that and see if they can start pursuing charges for their revenge porn. And then it kind of goes without saying, but communicating with your ex or whoever the person is that’s putting this up, “Hey, take that down. If you don’t take that down, I’m going to pursue action.”. And that way, if you ever get to a point, we’ll talk about, you know, what you can do. But in terms of suing civilly or pursuing criminal charges, you have documentation that you made a good faith effort to resolve it without having to involve the court system. And I think our judges appreciate that.
Jaime Davis: In your experience, do most folks figure out that these images are out there because they just happen to run across them? Or is it more a situation where their ex is sort of taunting them with it and saying, “hey, I’m going to post this if you don’t do X, Y and Z”?
Maria Hawkins: I think a lot of times in my work anyways, revenge porn is is largely geared toward getting what you want out of a separation. “You’re going to give me X amount of your retirement or I’m going to show everybody the real person that you are”, especially because intimate things that happen between spouses or a couple are very private, and especially if you’ve been married a long time or you’re just very trusting, there’s a lot of things that you can experience with a particular person. And so I usually see it with “if you don’t give me what I want”, custody, child support, whatever the case may be, “I’m going to post this everywhere so everyone can see the real person that you are”. I’ve heard that in multiple cases.
Jaime Davis: And so what if you are the perpetrator? What is the punishment for revenge porn?
Maria Hawkins: Well, if we’re talking about punishment, we’re talking about the criminal statute, right? Not the civil one. But punishment, you could actually be charged with a class one misdemeanor for the first time. So you kind of get a slap on the wrist. Misdemeanors aren’t the end of the world. Class one misdemeanor is not the end of the world. Take that for what it’s worth, because I don’t practice criminal law. But if you do it a second time, it gets bumped to a felony. It’s a class H felony, which is the lower of the felonies. However, it’s a felony in and of itself. And being convicted of a felony can affect you from your jobs perspective, from certain rights that you’re afforded and can affect you in a custody case. I think that this would have a huge effect on a custody case. Not only have you done this action, but now you’re a convicted felon and it’s going to affect your ability, places that you can go and jobs that you can have.
Jaime Davis: You also mentioned that there are some civil remedies. What are those?
Maria Hawkins: So first, important to establish what the cut off time is. We talk about statute of limitations, and that’s the time you have to sue another person. The statute of limitations for the civil statute related to revenge porn is generally a year from the time it’s discovered, not necessarily the time it’s posted, assuming the discovery is reasonable. And action can’t be brought more than seven years after the image has disclosed, the most recent disclosure. So what that means is we call that statute of repose. So let’s say, for example, your ex posted a picture of you in 2016, but you don’t see it until 2017. You have a year from 2017 to file a civil lawsuit related to that case. However, if you don’t see it and sue within seven years of when it’s posted, you’re not able to sue anyways, even though you haven’t seen it yet. And that just kind of cuts off. It’s it’s a statute of repose. So it’s a statute of limitations just extended a little bit more and puts a little bit more of a burden on you. We also, we’re talking about what the actual punishment is from a civil perspective. So it can be $1,000 per day for every violation, for every day of the violation, up to $10,000. So you can get pretty significant pretty quickly. Now, that’s just the punishment for that civil particular statute. You can also sue for what’s called punitive damages. And punitive damages is where a lot of money can be can be had. And in North Carolina, you can get up to $250,000 in punitive damages. And the reason it so much is because these damages were meant to punish somebody. It’s something that our laws have said, this is so egregious, this is so bad that we’re going to give you a punishment outside, above, just making somebody whole. Maybe, you know, you lost your job because these pictures were posted and you went three months without pay. That could be what your damage is. But punitive damages says, I don’t care if you were out a dollar. This is so bad that we’re punishing you up to $250,000. Now, the likelihood of actually recovering something from somebody is a completely different story. I’m sure we can have a whole podcast on collections, but that is the actual judgment that they would be looking at. And then, of course, you have attorneys fees and litigation costs, as long as your attorney’s fees are reasonable.
Jaime Davis: Do you have any advice for our listeners who may be going through a separation about how they can protect themselves?
Maria Hawkins: I would make sure that, one, if you feel you feel like you’re on the horizon of a separation, be very careful about what you’re sending people. I’ve had this happen in a case where it was a reconciliation and the parties were trying to get back together, and, you know, that’s something that you try and do to spice things up, right? You know, one of the things that you hear a lot in marriage counseling is to try new things, to try different things. I would say if you feel like a separation is on the horizon, just be careful and be careful about what you’re sharing with other people. Make sure that before you leave the house, if you’re leaving a computer there and there are certain images on there, you know that you’re taking those off and being very clear with your spouse, “I don’t want you posting these things. I don’t want you posting pictures of me”. Just in general. You don’t have to get specific and put ideas in their head. But making sure. Going back to those boundaries. Right. We talked about those in the beginning and making sure that you are doing everything you can to not put yourself in a situation. We are risking those images to be out there.
Jaime Davis: Right. I think people really need to remember that once these images are created and out there, they’re out there. And it is the rare thing that is actually deleted, even if you think it’s deleted. And so even before you take these types of pictures, just use your best judgment and really consider whether you trust this person enough to share that image with them. And when in doubt, just don’t do it.
Maria Hawkins: That is something that I always advise my clients. Even when we’re talking about the beginning stages of a marriage, pre-nuptials, things like that. It’s like what we tell our kids, right? Once it’s out there, it’s out there. Once you take the picture, it’s out there. And so if it’s not a picture, you wouldn’t want the world seeing, don’t take it.
Jaime Davis: Agreed. Maria, thank you for joining me today. If any of our listeners would like to contact you, what is the best way for them to reach you?
Jaime Davis: I hope you all enjoyed this episode of ‘A Year and a Day’. If you have any questions or comments, I would love to hear from you. You can e-mail me at firstname.lastname@example.org. If you like what you heard today, please leave us a review on Apple podcasts. As a reminder, while in my role as a lawyer, my job is to give folks legal advice, the purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.